place, under Rev. St. Tex. 1889, § 2847. Groesbeck v. Groesbeck, Tex., 14 S. W. Rep. 792.

62. MASTER AND SERVANT-Negligence.-Where a serv ant is injured by an accident caused by the failure of a fellow servant to perform a particular duty because of his absence from his post, evidence that such fellowservant was in the habit of leaving his post when his presence there was necessary to prevent accidents, and that the master might, by the exercise of reasonable diligence, have known of such habit, is sufficient to establish the master's negligence. Coppins v. New York, etc. R. Co., 25 N. E. Rep. 915.

63. MECHANICS' LIENS-Description. Under Act Pa. June 16, 1836, § 12, cl. 3, a claim for a lien on an oil refinery is sufficient when it gives the name thereof, describes the land on which it is located by metes and bounds, with the number of acres, and refers to an attached map whereon appears, drawn to scale, an accurate representation of the lands, and the relative location of all buildings and other structures. Linden Steel Co. v. Imperial Refining Co., Penn., 20 Atl. Rep. 867. 64. MEXICAN GRANTS-Validity. A Mexican grant of 800 varas square, "at a place called Rincon, embraced within the limitation of Yerba Buena," is so vague and uncertain that nothing passes by force of the grant alone, nor will it be helped out by possession taken under it by the grantee, as the Mexican law, then in force, required possession to be given "by judicial authority, with the citation of all those bounded upon him." Ohm v. City of San Francisco, Cal., 25 Pac. Rep. 155.

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65. MOTGAGE-Subrogation.-A complaint alleged that plaintiffs were junior mortgagees, and that they had been compelled to pay a prior mortgage given for the purchase price of the land to the holders thereof, who thereupon delivered it to plaintiffs; that, after the purchase of the land by the mortgagor, he constructed a building on the land, for which certain defendants furnished material, and performed labor, and that they afterwards filed a notice of lien therefor, and obtained a decree against the mortgagor foreclosing their lien: Held, that the complaint showed a subrogation of plaintiffs to the rights of the owners of a prior mortgage, on which they were entitled to maintain a suit for foreclosure.-Erwin v. Acker, Ind., 25 N. E. Rep. 888. 66. MUNICIPAL CORPORATION-Annexation of Farming Land.-Farming land adjacent to a city of the second class, which has been platted into blocks and lots, may, by ordinance, be annexed to such city.-Tilford v. City of Olathe, Kan., 25 Pac. Rep. 223.

67. MUNICIPAL CORPORATION.-Excavation in Street.A city is under no legal obligation to provide danger signals along an excavation, in a public street, as to one traveling outside of the street, or except at the crossings or intersections of such street, by other streets or highways; and when a person, in driving over a vacant lot or tract of ground, is precipitated over an embankment into the street and injured, the city is not liable in damages for such injury.-Mulvane v. City of South Topeka, Kan., 25 Pac. Rep. 217.

68. MUNICIPAL CORPORATION-Ordinance-Sentence.The legislature authorized the city council to lengthen the term of imprisonment. The law is permissive to the council, and is not an authority to the recorder to make the commitment for a longer time than is provided in the ordinance.-State v. Bringier, La., 8 South. Rep. 298.

69. MUNICIPAL CORPORATION-Street Assessments.-In an action to foreclose a street assessment lien upon a lot under St. Cal. 1871-72, p. 816, it being required by the statute that the owners of the lot be sued, the burden of proof that defendants were the owners is upon plaintiff, though the answer alleges that the title was in certain persons, one of whom was not a party defendant.-Robinson v. Merrill, Cal., 25 Pac. Rep. 162.

70. NEGOTIABLE INSTRUMENTS-Transfer.-G was the owner of a promissory note payable to bearer, and delivered it to J, who agreed to pay for it if he could use it in a certain way. J died without having been able to

use the note as contemplated, and his widow transferred it to plaintiff, who took it in good faith and for value, but after maturity: Held, that G was entitled to recover the note from plaintiff.- Walker v. Wilson, Tex., 14 S. W. Rep. 798.

71. PARTNERSHIP-Principal and Agent.-A contract, under which one delivers sheep to another, who at his own expense, is to care, for, manage, and control them, and to have the exclusive right to sell veal and muttons, and such of the ewes as may be agreed on, the net proceeds of all sales to be equally divided between the parties, does not create a partnership as to third parties.-Friedlander v. Hillcoat, Tex., 14 S. Rep. 786.

72. PRACTICE-Extension of Time to Plead.-Where the demurrer of the defendant has been everruled, and time given him to answer, and he does not present or file his answer in time, his application for leave for further time to answer must be addressed to the discretion of the trial court. If sufficient diligence is not shown on his part, the court will not abuse its discre. tion in refusing to allow the answer to be filed out of time.-Merten v. Newforth, Kan., 25 Pac. Rep. 204.

73. PRINCIPAL AND AGENT-Parol Evidence.-Where, in the trial of a case, the real question in controversy is the authority of a person to act as agent in procuring a loan upon real estate, and it is not established that such authority is in writing, it is competent to prove the same by parol evidence.-Kansas Loan & Trust Co. v. Love, Kan., 25 Pac. Rep. 191.

74. PROCESS-Foreign Corporation.-A foreign corporation, which has done no business in New York be yond negotiating a mortgage on its property, and hav ing the bonds secured thereby put on the list of the New York Stock Exchange, is not engaged in business in the State, and no jurisdiction over it is acquired by service of summons on its president while temporarily in the State for those purposes.-Clews v. Woodstock Iron Co., U. S. C. C. (N. Y.), 44 Fed. Rep. 31.

75. PUBLIC LANDS-Surveys.-Under the land laws of the United States, the line of ordinary high tide on the shore of an arm of the sea is the boundary between the land and the water at which the surveys of the public lands of the United States terminate.-Mann v. Tacoma Land Co., U. S. C. C., (Wash.), 44 Fed. Rep. 27.

76. QUITCLAIM DEED.-A quitclaim deed, duly recorded, taken by the purchaser in good faith and for a valuable consideration, will prevail over a prior unrecorded deed, where the subsequent purchaser had no notice of the former deed, and could not have dis covered its existence by an investigation of the public records, or by the exercise of reasonable diligence in making proper examinations and inquiries.-Merrill v. Hutchinson, Kan., 25 Pac. Rep. 215.

77. QUO WARRANTO-Title to Office.-An information filed in the name of the State, under the second section of the quo warranto act of February 2, 1872, by a person claiming title to an office, is demurrable if it does not show that he is entitled to the office.-State v. Kennerlu, Fla., 8 South. Rep. 310.

78. RAILROAD COMPANIES-Liability for Contractors' Acts. Where a railroad company employs a contractor to clear off and burn the rubbish from its right of way, the right of recovery against the railroad of one whose property is damaged from such fire is unaffected by the fact that the burning was carelessly done, but depends upon whether burning the rubbish was, under the circumstances, dangerous to the property of adjoining proprietors even if carefully performed.-St. Louis, etc. Ry. Co. v. Yonley, Ark., 14 8. W. Rep. 800. 79. REAL ESTATE BROKERS Commissions.-In an action for services rendered by real estate brokers in procuring a purchaser for defendant's land, where there were no written pleadings in the trial court, and no testimony of any definite contract, evidence of the value of the services, based on the price for which the land sold, was properly admitted, and a judgment entered upon that basis was proper.-Brand v. Merritt, Colo., 25 Pac. Rep. 175.1

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80. REAL ESTATE BROKERS Commissions.-Where defendant placed land with plaintiffs for sale on com. mission, knowing that a portion thereof belonged to a railroad company, plaintiffs' right to their commissions upon procuring a purchaser ready and willing to pay the agreed price was not defeated by defendant's refusal to deed the land, unless he received pay for the portion owned by the company.-Cawker v. Apple, Colo., 25 Pac. Rep. 181.

81. SALE-Warranty.-In an action on a promissory note given for part of the price of a binder machine, the answer alleged that plaintiff warrantied the ma. chine to do good work, and to cut and bind wheat in good order; and further alleged "that said machine would not do good work, and would not cut and bind wheat in good order," and that "it would not and could not be made to do good work," and that it was "absolutely worthless:" Held, that these allegations, with out any averments of the particulars of the breach of warranty relied on, were insufficient.-Aultman, Miller & Co. v. Seichting, Ind., 25 N. E. Rep. 894.

82. SCHOOL-DISTRICTS-Mandamus.-Under laws Tex. 1884, ch. 25, § 29, providing that the county commission. ers' court shall establish school-districts, and that they shall not be changed without the consent of a majority of the legal voters of the districts, the court can change the boundaries of existing districts, and also divide a district, and establish in its territory two or more districts.-Porter v. Rasberry, Tex., 14 S. W. Rep. 794.

83. SERVICE OF WRIT- Publication - Pleading.-An affidavit for an order for the service of a summons by publication, which merely states that the action is brought to recover on two notes therein described, but not alleging any connection of defendants with the notes, is fatally defective under Code Colo. § 44, requiring such an affidavit to show that a cause of action ex ists against defendants.-Beckett v. Cuenin Colo., 25 Pac. Rep. 167.

84. SET-OFF AND COUNTER-CLAIM-Promissory Note.Defendant, who had made a promissory note to R, pur. chased from W, R's note to W, long before the execu. tion of defendant's note, agreeing to pay therefor in goods or cash or both, at defendant's pleasure; but R's note was not delivered to defendant, because W did not have it with him at the time. Several months afterwards, and after part of the price had been paid, but before the note was delivered to defendant, he, for the first time, received notice that the note made by him to R was held by plaintiff, as indorsee of R: Held that, until delivery to defendant of R's note, the title thereto did not pass to him; and, therefore, although it matured before action by plaintiff against him on his own note, he could not set it off, under Rev. St. Ind. §§ 348, 5503.-Weader v. First Nat. Bank of Crawfordsville, Ind., 25 N. E. Rep. 887.

85. SHERIFFS-Proceeds of Attachment Sale.-Code Colo. § 109, requires a sheriff to deliver over the attached property or the proceeds thereof remaining in his hands unapplied on the judgment to defendant: Held, that a sheriff has no power to deduct from a balance in his hands, arising from the sale of attached property, counsel fees for defending an action of trover brought against him by a third party for the conversion of the goods levied on under the attchment.Cramer v. Brasher, Colo., 25 Pac. Rep. 180.

86. SPECIFIC PERFORMANCE-Requisites.-Held, under the facts that specific performance would not be decreed in defendant's behalf, as the acts of part per formance on which he relied were not clear and defi. nite, and referable exclusively to the contract, and the contract itself, and its terms, were not established by clear and unequivocal evidence.-Rogers v. Wolfe, Mo., 14 S. W. Rep. 805.

87. STREET RAILWAY COMPANIES-Broadening Gauge. -Where a city, by its ordinance, grants to a railroad company the right of way for its tracks through certain streets, and there is nothing in the ordinance as to the width of the tracks, the company will not be en

joined at the suit of owners of abutting property from changing its track from a narrow to a broad gauge.Denver, etc. Ry. Co. v. Barsaloux, Colo., 25 Pac. Rep. 165. 88. SURETIES-Contribution.-One of several sureties on a note, upon which judgment had been recovered against all the parties thereto, paid the judgment, and sued a co surety for contribution, alleging in his complaint certain facts affecting the liability of the parties to each other: Held, that a demurrer on the ground that the complaint sought to impeach the judgment in the action on the note could not be sustained, as it did not appear on the face of the complaint that the relation in which the defendants in that action stood to each other was settled therein.-Voss v. Lewis, Ind., 25 N. E. Rep. 892.

89. TAXATION.-Where a county which owns piers in and on the banks of a navigable stream leases them and all its franchises to a person on condition that he shall erect a bridge thereon, 'to hold the property so long as he shall maintain the bridge and keep it in repair, such person is the owner of the superstructure of the bridge as long as the condition remains un. broken, and such superstructure is subject to taxation, though the piers are exempt.-Lutterell v. Knox County, Tenn., 14 S. W. Rep. 802.

90. TAXATION-Collection.-On the redemption of land sold for taxes and purchased by the State, the collector is entitled to retain only his costs and commissions without interest or penalty, though, in order to redeem, the owner is required to pay doudle the total amount of taxes, costs, and commissions.—Ramsey v. State, Tex., 14 S. W. Rep. 793.

91. TAXATION-Foreign Corporations.-A foreign manufacturing company which maintains an established location and an agent in New York city for the purpose of sellings its products or faciliating their sale, and which keeps funds in New York city to maintain its place of business and to enable its agent to carry on his operations, is "doing business within the State" within the meaning of Laws N. Y. 1885, ch. 359, 501, which provide that every foreign corporation "doing business within this State" shall be subject to a tax on its corporate franchise or business, to be computed on the basis of the amount of capital stock employed within the State. Southern Cotton Oil Co. v. Wemple,U. S. C. C. (N. Y.), 44 Fed. Rep. 24.

92. TAX SALE-Limitation.-The payee of a note secured by deed of trust duly recorded is entitled to redeem the land from a sale under a judgment for taxes to which he was not a party, though the trustee was joined as a defendant, and the statute of limitations does not begin to run against the sult to redeem until the purchaser takes possession.-Cockrill v. Stafford, Mo., 14 S. W. Rep. 813.

93. TAX-SALE-Redemption.-Where a county treas urer, by a mistake in computation of time, gives in a redemption notice one day more than three years for redemption, the notice will not be held to be bad on its face.-Hicks v. Nelson, Kan., 25 Pac. Rep. 218.

94. TRESPASS TO TRY TITLE-Pleading-In trespass to try title, the defendant cannot, under a plea of not guilty, prove that in a deed under which the plaintiff claims title the premises in controversy were included by mistake, and were not part of the property intended to be conveyed; and in no case can the defendant take advantage of the mistake, without tracing his own title to the grantor named in the deed, though it is admitted that he was the original owner, and a common source of title.-Swink v. Motley, Tex., 14 S. W. Rep. 799.

95. TRIAL-Demurrer to Evidence.-It is reversible error for the trial court to sustain a demurrer to the evidence of the plaintiff, when there is some evidence tending to prove every material fact necessary for a recovery.-Reiner v. Cooper, Kan., 25 Pac. Rep. 186.

96. TRIAL-Jury-Exemptions.-Exemption from jury duty is a personal privilege, and not a disqualification; and the overruling of the plea is matter of complaint for the juror, and not for defendant.-State v. Jackson, La., South. Rep. 297.

97. TRIAL-Misconduct of Jury.-A jury which had been out 12 hours, and which was nearly equally divided, agreed to cast a certain number of ballots, and that the verdict should be returned for the party receiving the majority, the jurors favoring the party in the minority to abide by the result. The ballots were cast, and a small majority were found to be in favor of defendant, for whom a verdict was returned: Held, that the verdict must be set aside, and that the taint was not removed by the jury answering, and returning with the verdict, interrogatories which had been submitted to them.-Houk v. Allen, Ind., 25 N. E. Rep. 897.

98. TRIAL-Reading of Pleadings to Jury.—Where the Issue is clearly defined and thoroughly understood at the trial, a party is not entitled to read to the jury ex tracts from the pleadings, on the ground that his op. ponent, by failing to deny, admits a material allegation, which admission affects his credibility as a witness on his own behalf. The construction of such pleadings is for the court.-Cook v. Merritt, Colo., 25 Pac. Rep. 176.

99. TRIAL-Reception of Verdict.-Where, during the progress of a trial, and after the jury had retired, counsel for defendant asked permission of the judge to leave the court room and go to his law office, with the understanding that the judge is to send a bailiff for him, when the jury returns into court, and the judge fails to send word to counsel, and receives the verdict of the jury in his absence, and that of the defendant, and the verdict is read aloud to the jury, and no dissent made to the question as to whether it is their verdict, and the jury is not polled, held, that such omission on the part of the trial judge is not such an error as will cause a reversal of the judgment.-Seaton v. Smith, Kan., 25 Pac. Rep. 222.

100. TRIAL-Right to Jury.-In an action by one of several sureties on a note, who had been compelled to pay it, against a co-surety for contribution, the complaint alleged that the principal and the other sureties were, at the time of payment and since, insolvent, and had not then or since, any property subject to execution: Held, that these allegations did not render the cause one of “exclusive equitable jurisdiction," within the provision of Rev. St. Ind. 1881, § 409, that such causes should be tried by the court; and it was properly tried by a jury.-Michael v. Albright, Ind., 25 N. E. Rep. 902.

101. TRIAL-Separation of Jury.-Where a jury, after a cause is submitted to them, separate and go to supper, and again separate and go to breakfast, and also sepaate and go to dinner, without having been admonished by the court, as required by law, before either of said separations, and no showing is made that the substantial rights of the parties against whom they find were not prejudiced by such separations, it is error to overrule a motion for new trial alleging such separa tions as ground therefor.-Pracht v. Whitridge, Kan., 25 Pac. Rep. 192.

102. TRIAL-Separation of Jury.-Where a jury in a civil action separate and mingle with the public after they had retired to consider of their verdict, without permission of the court, and without having been duly admonished, as the statute requires, a presumption against their verdict arises that will vitiate it, unless it affirmatively appears that no prejudice was suffered by the losing party.-Ehrhard v. McKee, Kan., 25 Pac. Rep. 193.

103. TRIAL BY COURT. Wher each party requests the court to direct a verdict in his favor, and on direction of the court a verdict is rendered which has evidence to support it, the defeated party cannot then insist upon going to the jury on a controverted question of fact, since, by moving for a verdict, he has submitted the question to the court.-Howell v. Wright, N. Y., 25 N. E. Rep. 912.

104. TROVER AND CONVERSION Damages. In an action for the value of personal property taken and converted, damages equal to the legal interest upon the value of the chattels converted may be allowed, and

included by the jury in their verdict.- Perkins v. Marrs, Colo., 25 Pac. Rep. 168.

105. TRUSTS-Evidence. In an action by a judgment debtor to enforce a trust in land sold under execution against him, evidence that defendant had agreed to buy the land for plaintiff, when contradicted by the defendant, and not corroborated by the conduct of the parties, is insufficient to justify a recovery.— Hufnagle v. Black burn, Penn., 20 Atl. Rep. 869.

106. USURY-Liability of Banks.-Pub. Acts Tenn. 185960, ch. 129, does not apply to chartered banks, since they already possessed all the powers conferred, and most of those prohibited, and therefore no penalty for usury could be recovered, under the act, against a chartered bank. State v. Lookout Bank of Morristown, Tenn., 14 S. W. Rep. 801.

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107. WILL-Construction. Testator devised certain property to trustees, who were to permit his three sons to occupy it. At the request of either of the sons, the trustees were to have the property appraised and convey it to any two of them who should wish to purchase it at the appraised value, and, if no two wished to purchase, the trustees were to sell the property. Whenever the sons could not agree, the trustees were to sell the property and invest the proceeds, one-third of which was to be paid to each son as he arrived at 50 years of age. If either died under that age his share was to be paid to his legal heirs. One of them requested a sale, and the property was purchased by the other two: Held, that the sale did not terminate the trust, but that it continued, as to the share of each, until he arrived at 50 years of age, or until he died, when it was to be distributed as personal property.-Kendall v. Gleason, Mass., 25 N. E. Rep. 838.

108. WILL-Parties.-A will provided that if any of the legatees should die before testator the legacies should be paid to the survivors, and that if the personal estate should be insufficient to pay them they should be a charge upon the real estate. A bill to charge the legacies upon the land alleged that certain of the lega cies had lapsed, although the legatees had died since the death of the testator: Held, that the personal representatives of such deceased legatees were necessary parties to the bill. Young v. Schelley, N. J., 20 Atl. Rep. 856.

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109. WILL- Testamentary Powers. A will provided that, when the testator's eldest son should become of age, there should be divided between the children "any balance which may remain of my estate after the payment of my debts, and the sale of so much of my estate as shall be sufficient, in the opinion of my executor, to support and educate my children:" Held, that the executor's authority to sell land to make provision for the support and education of the younger children did not terminate on the majority of the eldest son.- Hallum v. Silliman, Tex., 14 S. W. Rep. 797.

110. WILL-Trusts.-A testator made the following de. vise to his wife: "All the rents, income, and profits arising from my real estate until the eldest one of my children has attained the age of eighteen years; upon condition that my said wife shall raise, support, and educate my children until they respectively have attained the age of eighteen years:" Held that, the wife took an absolute estate in the land free from any trust. -Zimmer v. Sennott, Ill., 25 N. E. Rep. 774.

111. WILL Undue Influence. Where a will is attacked on the ground of mental incapacity, it is not enough to show that testator's mind was impaired by old age and business troubles, that he could not at all times recall the names, persons, or families of those with whom he had been intimately acquainted, and that occasionally he would momentarily lose complete control of his mental power, where the testimony of the lawyer who drew the will, and the subscribing witnesses, shows that, at the time of the execution of the will, testator was in possession of his usual mental powers.- White v. Starr, N. J., 20 Atl. Rep. 875.

The Central Law Journal.

ST. LOUIS, FEBRUARY 6, 1891.

THE modern theory of the rights of married women was carried far beyond previous decisions and rulings of the courts, at least in this country, in the decision of the case of Suan v. Caffe, by the New York Court of Appeals. The doctrine that a married woman may make a legal contract of partnership with her husband, which will be enforcible at law, is certainly not upheld by the current of authorities even in that State, and we doubt very much whether the statute under which such power was conceded will admit of so broad a construction. There are many States, wherein such a power on the part of the wife has been in terms denied, under statutes even more susceptible of such construction than that of New York, the language of which indicates that its sole purpose was to secure to the married woman, free from the control of her husband, the earnings and profits of her own business, and her own labor and services carried on and performed on her own and separate account, which, at common law, would have belonged to her husband. The case in question will be found in full on page 126 of this issue, together with an exhaustive note on the subject.

It is of interest to note an important departure from the requirement of unanimity in the verdicts of juries which has been made in Minnesota. An amendment allowing ten members, or five-sixths of a jury, to render a verdict in civil cases was voted on at the recent election, and appears to have been carried. The adoption of the amendment has occasioned some surprise in the State as elsewhere. The departure is, however, in a direction which many thoughtful men have pointed out as the path of progress, and the opinion of experts on the subject is on record. to the effect that the demand for such a change will become greater as juries improve and as the difficulty of securing conscientious unanimity increases. The operation of the VOL. 32-No. 6.

new system in Minnesota will be watched everywhere with interest.

THOUGH the question as to whether Count Tolstoi's book, the "Kreutzer Sonata," is or is not an obscene publication, is hardly a legal one, yet the legal journals and one of the courts at least, have joined in the general discussion upon the subject. On the one hand we have the opinion of Judge Thayer, of Philadelphia, who ruled in a case under the statute of Pennsylvania, which makes it an offense to publish, sell or exhibit any. y.indecent, lewd or obscene book, that the above publication was not such a book, simply because it does not teach indecent practices, contains no indecent words, and its motive is the advocacy of celibacy; and that though it may contain very absurd and foolish views about marriage, there is not only no obscenity, but, on the contrary, it denounces such on almost every page. On the other hand, the learned editor of the Albany Law Journal reminds us that the definition of obscene, as found in the Century dictionary, is "anything offensive to modesty and decency," and within this definition, as it seems to him, this book can be brought. He contends that it is an error to suppose that a book cannot be obscene unless it counsels or teaches indecency. "It may be obscene by the representation of immodest ideas and situations, such as a book consisting solely in filthy pictures is obscene. The latter would be none the less obscene if it contained an express warning against the practice of anything pictured in it." On the other hand, while the learned editor of the American Law Review says, "There is no more sense in this extravagant transcendentalism than there is in the braying of a herd of wild asses upon an Asiatic desert," yet that, "taking the whole book together, it cannot be said that it is a lewd or obscene book; that any principle of criticism that would so denounce it, would exclude many books which have been accepted by mankind out of this denunciation," and calls attention to the fact that passages might be extracted from the Bible which, if quoted by themselves, would be classed as obscene. This argument, it seems to us, is hardly a fair one. Whether or not the "Kreutzer Sonata" is obscene depends

upon what it contains, and not upon what may be found in some other book, in reference to the obscenity of which people may differ as widely as in this case. Without reference to the merits of the discussion and argument in the book, which are undoubtedly legitimate and of some value, it may be as obscene to some readers, at least, as is an outright immoral publication. Webster defines obscene as "offensive to chastity and delicacy." The distinction between this definition and the broader one of the Century dictionary will be noted. The "Kreutzer Sonata" would undoubtedly be offensive to a chaste person of delicate nature, i. e., a young virtuous girl, while it probably is not so to many of its readers. We ourselves confess to have been more amused than shocked by it, and our experience, we believe, is that of many others. Still we would not place the book into the hands of a young girl any more than we would a copy of some very excellent medical treatises. In other words, the question of obscenity is a relative one, and, in our opinion, should be considered separate and apart from the idea of indecency which it somewhat resembles, but from which it, in many respects, differs.

NOTES OF RECENT DECISIONS.

MALICIOUS PROSECUTION-PROBABLE Cause. -The Supreme Court of Indiana, in Adams v. Bicknell, 25 N. E. Rep. 804, decide that defendant's conviction of a criminal charge in a justice's court, not procured by fraud or perjury, is conclusive on the question of probable cause, though followed by an acquittal on appeal to the circuit court, and is a bar to a subsequent action for malicious prosecution against the person who instituted the proceedings before the justice. Olds, C.

J., says:

The sole question presented is as to whether the complaint is rendered defective on account of it show. ing that there was a conviction of the appellant before the justice of the peace. It is contended by counsel for appellee that the fact that the appellant was convicted by the justice, in the absence of averments that such conviction was procured by perjury or subornation of perjury on the part of the appellee, or showing that it was procured by fraud or collusion on his part, rebuts the other averments of malice and want of probable cause, and is conclusive evidence of probable cause, and exonerates the appellee from liability.

On the other hand, it is contended by counsel for appellant that the appeal operated to vacate the judgment before the justice, and the cause came up in the circuit court;for a trial de novo; that it is the same as if a new trial had been granted by the justice, and hence is not conclusive evidence that probable cause existed for instituting the prosecution. The decisions of the court are not uniform upon the question presented, but we think the great weight of authority is to the effect that the judgment of the justice's court, though appealed from, and an acquittal had in the circuit court, is, in the absence of fraud, conclusive of probable cause. Cooley, Torts (2d ed.) p. 185, states the law to be: "If the defendant is convicted on the first instance, and appeals, and is acquitted in the appellate court, the conviction below is conclusive of probable cause." Stephen, in his work on the law relating to Actions for Malicious Prosecutions, says: "It seems probable that the reversal on appeal of a conviction is not a termination favorable to the person convicted, upon which he can found an action for malicious prosecution." Reynolds v. Kennedy, 1 Wils. 232 (1748) which has frequently been quoted as an authority, was an appeal from the court of king's bench, in Ireland. The declaration was for seizing the plaintiff's brandy, and falsely and maliciously exhibiting an information against him before the subcommissioners of excise for not having paid duty upon it. It alleged that the subcommissioners condemned the brandy, and that the commissioners of appeal "most justly reversed the judgment of the subcommissioners." It was held that, as to the information before the subcommissioners, the declaration showed a foundation for the prosecution, and that, as to the appeal, "we cannot infer, from the Judgment of reversal of the commissioners of appeal, that the defendant, the prosecutor, was guilty of any malice." In Griffis v. Sellars, 2 Dev. & B. 492, a wellreasoned case, it is held that, where there was a trial and conviction in the county court, and an appeal taken to the superior court, where the defendant was acquitted, it was conclusive of probable cause, and that a defendant in such case could not maintain an action for malicious prosecution; and the declaration w.s held bad for this reason. In the case of Clements v. Apparatus Co., 10 Atl. Rep. 442, the Supreme Court of Maryland, in a case for malicious prosecution, in a case where there bad been a judgment in favor of the defendant in the case upon which the prosecution was based, which judgment had been reversed, said: "It was the deliberate judgment of a court of competent Jurisdiction that there was not only a probable cause for filing the bill for injunction, but that the appellee was entitled to the relief prayed. A judgment thus rendered ought to be considered to be conclusive as to the question of probable cause, although it was reversed on appeal by the supreme court; otherwise, in every case of reversal an action would lie for the institution of the original suit." Whitney v. Peckbam, 15 Mass. 243, is a case directly in point. The plaintiff in that case was arrested for an alleged assault and battery, and tried and convicted before the justice. On appeal to the circuit court of common pleas, he was acquitted. The supreme court held that the conviction before the justice, he having jurisdiction of the subject-matter, was conclusive evidence that there was probable cause. Parker v. Huntington, 2 Gray, 124; Parker v. Farley, 10 Cush. 279. In Bitting v. Ten Eyck, 82 Ind. 421, it is said, by this court: "The conviction of the plaintiff is always evidence of probable cause, unless it was obtained chiefly or wholly by the false testimony of the defendant. Generally it la